Flawed blasphemy report would maintain religious privilege

by Michael Nugent on January 28, 2014

The Irish Constitutional Convention has reported to the Government on the issue of blasphemy, which the Convention discussed last November. The report recommends that the offence of blasphemy is removed and replaced with a new general provision to include a prohibition on incitement to religious hatred. The report also recommends creating a new set of detailed legislative provisions to include incitement to hatred on a statutory footing. However, the recommendations in the report do not accurately reflect the report’s own description of the proceedings of the Convention.

Atheist Ireland is asking the Government to hold a referendum to remove the offence of blasphemy, either by simply removing the reference to blasphemy or else by using the approach recommended by Eoin O’Dell at the Convention, and earlier by the 1996 Constitution Review Group, which is to replace Article 40.6.1(i) with a positive clause enshrining freedom of expression and its limits, based broadly on Article 10 of the European Convention on Human Rights. The current Convention report says that this positive proposal, which was made by one of its own Constitutional experts, “received broad support from across the tables.” However, despite this broad support, it was not even included as an option on the ballot paper that the Convention voted on.

We also ask the Government to reject the proposals to include a new provision about incitement to religious hatred, either in the Constitution or in statute law. We already have laws prohibiting incitement to hatred on account of race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation. Why should we isolate one of these categories of incitement to hatred, and ban it again, either in the Constitution or statute law? This would be yet another example of giving religion a legal privilege that other beliefs do not have, and discriminating yet again against secular citizens and our human rights. Also, despite what the report says, the Convention did not vote to recommend a law prohibiting incitement to religious hatred.

The Convention did not vote on an expert proposal with broad support

The Convention report makes public for the first time that the most substantial proposal made by one of its own experts “received broad support from across the tables”, yet it was not even included on the options that the Convention members were asked to vote for. This proposal had previously been made by the 1996 Constitution Review Group chaired by TK Whitaker, and Atheist ireland also suggested it to the Convention.

The Convention report states: “In terms of amending Article 40.6 of the Constitution, the suggested amendment put forward by Eoin O’Dell received broad support from across the tables. Others suggested replacing the blasphemy clause with a new prohibition on incitement to hatred provision.” What Eoin O’Dell proposed was the replacement of Article 40.6.1 in its entirety with a new provision based broadly on Article 10 of the European Convention on Human Rights and Fundamental Freedoms, other international freedom of expression guarantees, and the language of Article 40.6.1(i). He proposed this as a possible wording:

“Everyone has the right to freedom of thought, belief, speech, communication and expression. This right includes the freedom to seek, receive, hold and impart convictions, opinions, information and ideas of any kind in any form without interference by public authority. This right also includes the freedom of the press and of other organs of public opinion, and of other media of communication. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such necessary limits as are prescribed by law and proportionate only to the interests of national security, territorial integrity, public safety or the common good, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or the rights of others, preventing the disclosure of information entitled to a reasonable expectation of privacy or otherwise received in confidence, or maintaining the authority and impartiality of the judiciary.”

Given that this expert proposal (an approach which was also suggested by Atheist Ireland) “received broad support from across the tables” at the Convention, why was it not included among the options that the Convention members were asked to vote on? Why instead were they given only the options of (a) removing the offence altogether, or (b) replacing it with a new general provision to include incitement to religious hatred? Because this significant and credible and positive option was not included on the ballot paper, we simply do not know how that “broad support from across the tables” would have translated into votes in a more complete ballot.

The Convention did not vote for statutory incitement to hatred laws

The report recommends creating a new set of detailed legislative provisions to include incitement to religious hatred on a statutory footing. But the Convention did not vote to recommend this. Here is what happened. The Convention was given two related questions about statutory laws, the second of which depended on the answer to the first.

Question 3 was “Should there be a legislative provision for the offence of blasphemy?” This proposal was narrowly defeated. So the Convention voted that there should be no legislative provision for the offence of blasphemy.

Question 4, as a follow-up to this, was “In the event that the Convention favours legislative provision, it should be: (a) the existing legislative blasphemy provision; (b) a new set of detailed legislative provisions to include incitement to religious hatred; (c) undecided/no opinion.” In this vote, 82% voted for option (b).

So the Convention voted that there should be no legislative provision for the offence of blasphemy. The reference to incitement to hatred laws came in a hypothetical secondary question, which was “In the event that the Convention favours legislative provision, what should it be?” But the Convention had already voted not to favour legislative provision, so the hypothetical follow-up vote “in the event that…” had thus become irrelevant.

This hypothetical second question cannot have been intended to be operative if the answer to the first question was no. It simply does not make sense to ask people whether there should be a law against blasphemy, and if they say no, then ask them whether it should be the existing law or something else. That second question would only make sense if the answer to the first question had been yes, which it wasn’t. The result of this vote should not be included in the report as a recommendation.